RANI MAHALKA NISHA KHAN Vs. ABDUL JAVED KHAN

JUDGEMENT

(1.) BY way of the instant revision, the applicant has challenged the judgment dated 3.3.12 passed by Principal Judge, Family Court, Raipur in MJC No.478/2011 whereby the court below had rejected the claim application filed by the applicant under Section 125 Cr.P.C.

(2.) FACTS leading to the instant case are that the applicant and the non -applicant belong to the Muslim community by religion and were married on 2.6.02. It is contended that as on 7.12.10, the non -applicant i.e. had given Talak -ul -bain (divorce) to the applicant. Thereafter, the applicant had filed an application under Section 125 Cr.P.C and the matter was registered as MJC No.478/2011 before the Principal Judge, Family Court, Raipur. The Principal Judge, Family Court, Raipur ultimately vide judgment dated 3.3.12, rejected the claim application of the applicant on the ground that the proceedings for maintenance under the provisions of Section 125 Cr.P.C are not maintainable on account of the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth 'the Act of 1986). Accordingly, the application under Section 125 Cr.P.C preferred by the applicant was rejected at the initial stage itself without entering into the merits of the case leading to the filing of the present revision.

(3.) PER contra, counsel for the non -applicant argued that the Supreme Court in the said judgment of Shabano Bano vs. Imran Khan (supra) has not dealt with the issue of whether in the light of enactment of the Act of 1986, there is a specific condition for obtaining maintenance by a divorced Muslim woman under the provisions of the said Act of 1986 and the said Act having an overriding effect, the provisions of Section 125 Cr.P.C would not be maintainable and thus the Supreme Court having not dealt and discussed the said issue in the judgment of Shabano Bano vs. Imran Khan (supra) cited by counsel for the applicant, the judgment of the court below is proper and justified to that extent. He further submits that those issues which have not been discussed and considered by the Hon'ble Supreme Court in the judgment of Shabano Bano vs. Imran Khan (supra) the objection to this effect can be raised in the subsequent proceedings. That only because in the said case, the Supreme Court had held that the proceedings under Section 125 Cr.P.C are maintainable would not by itself make it a thumb rule that the divorced Muslim woman who seek maintenance and can apply for maintenance under Section 125 Cr.P.C. If such an analogy is to be accepted, then the very purpose of enacting a separate provision under the Act of 1986 giving provision for grant of maintenance to divorced Muslim woman would become redundant and accordingly, prayed that the order passed by the court below being justified, the revision petition deserves to be rejected.